Sailappan Sodali Muthu v. The Municipal Corporation of Greater Mumbai

1. This appeal is filed challenging the order passed by the City Civil Court on 23 February 2011 whereby notice issued under Section 314 of the Mumbai Municipal Corporation Act, 1888 (MMC Act) was held to be valid and it was held that the structure in respect of which the notice 1 of 5 was issued was situated on the dumping ground belonging to the Corporation.

2. The appellant-plaintiff in the plaint had prayed that the impugned notice under Section 314 of the MMC Act dated 28 April 2008 is illegal, bad in law, null and void.

3. The scanned copy of the impugned notice is reproduced hereunder:----- 2 of 5

4. Section 314 of the MMC Act empowers the Commissioner to remove without notice anything erected, deposited or hawked in contravention of Sections 312, 313 or 313A of the MMC Act.

5. Section 312 of the MMC Act deals with prohibition of structures or fixtures which cause obstruction in streets. Section 313 of the MMC Act prohibits deposit upon any street or upon any open channel, drain or well in any streets, any stall, chair, bench etc. in any public place so as to form an obstruction thereto or encroachment thereon or prohibit project at a height of less than 12 feet from the surface of the street or attached to or suspend from any wall or portion of building abetting on a street at a height less than 12 feet. Section 313A of the MMC Act provides for license for sale in public places.

6. Before issuing notice under Section 314, the Commissioner has to satisfy himself as to whether there is contravention of Sections 312, 313 or 313A of the MMC Act for exercising his powers under Section 314 of the MMC Act. The said satisfaction has to be reflected in the notice which is issued. In the instant case, the impugned notice ( scanned as above) does not specify as to which of the provisions of the MMC Act viz., Sections 312, 313, 313A is contravened for empowering the Commissioner to initiate proceedings under Section 314 of the MMC Act. 3 of 5

7. The notice on the face of it appears to have been issued mechanically and without application of mind.

8. The respondent-Corporation did not file any written statement before the trial Court in which they could have justified the nature of contravention for which the power was exercised. Therefore, in the instant case, the respondent-Corporation has failed to satisfy jurisdictional condition for issuance of notice under Section 314 of the MMC Act.

9. Since the notice itself does not satisfy the jurisdictional condition required under Section 314 of the MMC Act, in my view the impugned notice cannot be sustained and has to be quashed and set aside.

10. Mr. Thorat, learned counsel for the appellant has raised various contentions on merits as also on the nature of proceedings under Section 314 of the MMC Act. I do not propose to give any findings on the same since on the jurisdictional aspect itself, the notice under Section 314 of the MMC Act dated 28 April 2008 cannot be sustained.

11. The appellant has also taken out an application for admission of additional evidence to produce the property card on record. However, since I have held the notice itself to be without jurisdiction, no finding is given on the said application.

12. In view of above, the impugned order dated 23 February 2011 is 4 of 5 quashed and set aside.

13. Appeal is allowed in the above terms. However, this would not preclude the respondent to issue fresh notice in accordance with law.

14. Since the impugned order is quashed and set aside, the suit is decreed in terms of prayer clauses (a) and (b) by holding that the impugned notice is bad in law. [ JITENDRA JAIN, J. ]